Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Borge Development, Inc. v. City of Chico

April 20, 2009

BORGE DEVELOPMENT, INC., A CALIFORNIA CORPORATION, PLAINTIFF,
v.
CITY OF CHICO, CALIFORNIA; BUTTE COUNTY, CALIFORNIA; AND BALDWIN CONTRACTING COMPANY, INC., A CALIFORNIA CORPORATION, DEFENDANTS.



ORDER GRANTING CITY OF CHICO'S MOTION FOR SUMMARY ADJUDICATION

Borge Development, Inc. ("Borge") brought this action against the City of Chico, California ("Chico"), Butte County, California ("Butte County"), and Baldwin Contracting Company ("Baldwin") for cost recovery under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607, contribution under CERCLA, 42 U.S.C. § 9613, and other state law violations. Chico brought a motion for summary adjudication. Borge opposed the motion. Both Butte County and Baldwin partially joined in Chico's Motion for Summary Adjudication. For the reasons stated below, Chico's Motion for Summary Adjudication is GRANTED.*fn1

BACKGROUND

Borge owns two parcels of real property, APN 002-180-086 and APN 002-180-084, located in Chico, California ("Borge Property").

Statement of Undisputed Facts ("SUF") ¶ 2. Borge obtained title to APN 002-180-086 on November 3, 2004. Id. ¶ 4. Borge obtained title to APN 002-180-084 on July 19, 2005. Id. ¶ 5. Both of these parcels are located within an area referred to as the Humboldt Road Burn Dump Area ("HRBD"). Id. ¶ 3.

Borge alleges that the Borge Property was contaminated through Chico's operation of a dump in the HRBD until 1965. Id. ¶ 16. In 1980, Chico sold the dump to George Scott. Id. ¶ 17. Borge was aware that the Borge Property was contaminated before purchasing it. Id. ¶ 7. Borge was ordered by a state regulatory agency to clean up the contamination. The cost to remediate the Borge Property was more than $490,000.00. On December 16, 2005, the Regional Water Quality Control Board certified that all remediation on the Borge Property had been completed. Id. ¶ 10.

One of the parcels contained Butte County meadowfoam, an endangered species. Id. ¶¶ 11-12. As a result, Borge was required to undertake a meadowfoam survey, which was completed in March 2006. Id.

OPINION

Chico seeks summary adjudication on three discrete issues:

1. Whether Borge is a liable party under CERCLA Section 107;

2. Whether Borge is entitled to recover damages for lost profits; and

3. Whether Borge can maintain its claim for dangerous condition of public property.*fn2

Summary judgment is appropriate if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party will have the burden of proof on an issue at trial, the movant's burden may be discharged by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. See id. at 325. Summary judgment for a defendant is appropriate when the plaintiff fails to make a showing sufficient to establish the existence of an element essential to its case, and on which [he] will bear the burden of proof at trial. Id. at 322.

If the moving party sustains its burden, the burden then shifts to the nonmoving party to go beyond the pleadings and by his or her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 324 (citing Fed.R.Civ.P. 56(e)). "If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). Summary judgment is appropriate if, viewing the evidence and the inferences therefrom in the light most favorable to the nonmoving ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.